Investigating online child porn cases hits wrinkle

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Hacking has created havoc in prosecuting child pornography cases — both for those caught in a 2015 FBI sting operation as well as for the adult victims of malicious pedophiles.

Evidence obtained by the FBI over the Internet has been ruled inadmissible in recent child pornography cases, and its ability to cast a wide cybernet to catch perpetrators is facing Fourth Amendment search and seizure concerns.

The FBI has refused to disclose how it hacked the computer of Jay Michaud, a Vancouver, Wash., middle school teacher charged with child pornography. Federal prosecutors claim he used the so-called “dark web,” which enables users to hide their identities, to access child pornography sites.

After a search warrant was issued, a cell phone and two USB drives were found at his home containing child pornography. The FBI alleges Michaud logged 100 hours surfing a hidden online network that couldn’t be accessed accidentally.

But the prosecution stalled when the defense attacked the reliability of the FBI hack, and the bureau would not reveal its method, including its Network Investigation Technique code.

Another impediment was Rule 41 of the Federal Rules of Criminal Procedure allowing judges to authorize searches only within their district.

Federal judges in Massachusetts and Oklahoma cases have ruled FBI warrants invalid after a Virginia judge authorized the bureau for 13 days in early 2015 to seize and operate Playpen, a child pornography site with 150,000 members hidden in the dark web. The FBI deployed malware negating privacy protections and turned up 1,000 real IP addresses resulting in 137 prosecutions now potentially in jeopardy because of Rule 41.

The FBI stated Playpen contained some of the most extreme child abuse imagery imaginable as well as advice on avoiding detection.

At the request of the Justice Department, the U.S. Supreme Court in April proposed changing Rule 41 to bring it into the digital age by allowing warrants outside the district when the location is “concealed through technological means.”

Congress has until Dec. 1 to amend or reject the change — or do nothing, which would allow it to take effect. The American Civil Liberties Union and Google criticized the proposal as too broad and a violation of the Fourth Amendment’s safeguards against government search and seizure.

Sen. Ron Wyden, D-Ore., warned, “This rule change could potentially allow federal investigators to use one warrant to access millions of computers, and it would treat victims of the hack the same as the hackers himself.”

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While we are wary of Fourth Amendment abuses — indiscriminate wiretapping or similar Internet ploys — we don’t believe in allowing a refuge for pedophiles or other criminal activities on the dark web by virtue of an outdated technicality.

“Why should the rule be ‘You can hack a computer if you know where it is, but not when you don’t?” asked Nicholas Weaver, a senior staff researcher on computer security at the International Computer Science Institute in Berkeley, Calif.

Still, the overly broad nature of Rule 41 is cause for concern. Congress must perform a balancing act with restrictions against abuse. Sen. Charles Grassley, R-Iowa, who chairs the Senate Judiciary Committee, should lead that effort.

On the flip side, malicious pedophiles have infected computers of innocent people who have been prosecuted for child pornography.

In 2009, an Associated Press investigation reported virus-infected computers were being used remotely as a repository for child pornography without the owner knowing it “until police knock at your door.”

Michael Fiola, an investigator for the Massachusetts agency overseeing workers’ compensation, was a victim in 2007. After a bill for his state-issued laptop showed he used 4.5 times the data of colleagues, a technician found child pornography in a folder where stored images could be viewed online.

Fiola was fired and charged with possession of child pornography. He spent $250,000 in legal fees. The charges were dropped 11 months later after it was determined his computer was infected and programmed to access as many as 40 child pornography sites every minute, beyond any individual’s capabilities.

The AP stated at the time 20 million computers worldwide were infected with viruses that could give hackers full control — either by opening email attachments from unknown sources or visiting a malicious Web page.

Jeremiah Grossman, founder of White Hat Security Inc., told the AP, “Computers are not to be trusted,” calling it “painfully simple” to download something to a computer with the owner unaware — whether a program to display ads or store illegal photos.

Prosecutors are skeptical of the “Some Other Dude Did It” claim used by attorneys defending suspected pedophiles, but it shouldn’t be rejected outright.